WVC 23 - 4 - 1
§23-4-1. To whom compensation fund disbursed; occupational
pneumoconiosis and other occupational diseases
included in "injury" and "personal injury";
definition of occupational pneumoconiosis and other
occupational diseases; rebuttable presumption for
cardiovascular injury and disease or pulmonary
disease for firefighters.
(a) Subject to the provisions and limitations elsewhere in
this chapter, workers' compensation benefits shall be paid the
Workers' Compensation Fund, to the employees of employers subject
to this chapter who have received personal injuries in the course
of and resulting from their covered employment or to the
dependents, if any, of the employees in case death has ensued,
according to the provisions hereinafter made: Provided, That in
the case of any employees of the state and its political
subdivisions, including: Counties; municipalities; cities; towns;
any separate corporation or instrumentality established by one or
more counties, cities or towns as permitted by law; any corporation
or instrumentality supported in most part by counties, cities or
towns; any public corporation charged by law with the performance
of a governmental function and whose jurisdiction is coextensive
with one or more counties, cities or towns; any agency or
organization established by the Department of Mental Health for the
provision of community health or mental retardation services and
which is supported, in whole or in part, by state, county or municipal funds; board, agency, commission, department or spending
unit, including any agency created by rule of the Supreme Court of
Appeals, who have received personal injuries in the course of and
resulting from their covered employment, the employees are
ineligible to receive compensation while the employees are at the
same time and for the same reason drawing sick leave benefits. The
state employees may only use sick leave for nonjob-related absences
consistent with sick leave use and may draw workers' compensation
benefits only where there is a job-related injury. This proviso
shall not apply to permanent benefits: Provided, however, That the
employees may collect sick leave benefits until receiving temporary
total disability benefits. The Division of Personnel shall
promulgate rules pursuant to article three, chapter twenty-nine-a
of this code relating to use of sick leave benefits by employees
receiving personal injuries in the course of and resulting from
covered employment: Provided further, That in the event an
employee is injured in the course of and resulting from covered
employment and the injury results in lost time from work and the
employee for whatever reason uses or obtains sick leave benefits
and subsequently receives temporary total disability benefits for
the same time period, the employee may be restored sick leave time
taken by him or her as a result of the compensable injury by paying
to his or her employer the temporary total disability benefits
received or an amount equal to the temporary total disability
benefits received. The employee shall be restored sick leave time on a day-for-day basis which corresponds to temporary total
disability benefits paid to the employer: And provided further,
That since the intent of this subsection is to prevent an employee
of the state or any of its political subdivisions from collecting
both temporary total disability benefits and sick leave benefits
for the same time period, nothing in this subsection prevents an
employee of the state or any of its political subdivisions from
electing to receive either sick leave benefits or temporary total
disability benefits, but not both.

(b) For the purposes of this chapter, the terms "injury" and
"personal injury" include occupational pneumoconiosis and any other
occupational disease, as hereinafter defined, and workers'
compensation benefits shall be paid to the employees of the
employers in whose employment the employees have been exposed to
the hazards of occupational pneumoconiosis or other occupational
disease and in this state have contracted occupational
pneumoconiosis or other occupational disease, or have suffered a
perceptible aggravation of an existing pneumoconiosis or other
occupational disease, or to the dependents, if any, of the
employees, in case death has ensued, according to the provisions
hereinafter made: Provided, That compensation shall not be payable
for the disease of occupational pneumoconiosis, or death resulting
from the disease, unless the employee has been exposed to the
hazards of occupational pneumoconiosis in the State of West
Virginia over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last
exposure to such hazards, or for any five of the fifteen years
immediately preceding the date of his or her last exposure. An
application for benefits on account of occupational pneumoconiosis
shall set forth the name of the employer or employers and the time
worked for each. The commission may allocate to and divide any
charges resulting from such claim among the employers by whom the
claimant was employed for as much as sixty days during the period
of three years immediately preceding the date of last exposure to
the hazards of occupational pneumoconiosis. The allocation shall
be based upon the time and degree of exposure with each employer.

(c) For the purposes of this chapter, disability or death
resulting from occupational pneumoconiosis, as defined in
subsection (d) of this section, shall be treated and compensated as
an injury by accident.

(d) Occupational pneumoconiosis is a disease of the lungs
caused by the inhalation of minute particles of dust over a period
of time due to causes and conditions arising out of and in the
course of the employment. The term "occupational pneumoconiosis"
includes, but is not limited to, such diseases as silicosis,
anthracosilicosis, coal worker's pneumoconiosis, commonly known as
black lung or miner's asthma, silico-tuberculosis (silicosis
accompanied by active tuberculosis of the lungs), coal worker's
pneumoconiosis accompanied by active tuberculosis of the lungs,
asbestosis, siderosis, anthrax and any and all other dust diseases of the lungs and conditions and diseases caused by occupational
pneumoconiosis which are not specifically designated in this
section meeting the definition of occupational pneumoconiosis set
forth in this subsection.

(e) In determining the presence of occupational
pneumoconiosis, X-ray evidence may be considered, but shall not be
accorded greater weight than any other type of evidence
demonstrating occupational pneumoconiosis.

(f) For the purposes of this chapter, occupational disease
means a disease incurred in the course of and resulting from
employment. No ordinary disease of life to which the general
public is exposed outside of the employment is compensable except
when it follows as an incident of occupational disease as defined
in this chapter. Except in the case of occupational
pneumoconiosis, a disease shall be considered to have been incurred
in the course of or to have resulted from the employment only if it
is apparent to the rational mind, upon consideration of all the
circumstances: (1) That there is a direct causal connection
between the conditions under which work is performed and the
occupational disease; (2) that it can be seen to have followed as
a natural incident of the work as a result of the exposure
occasioned by the nature of the employment; (3) that it can be
fairly traced to the employment as the proximate cause; (4) that it
does not come from a hazard to which workmen would have been
equally exposed outside of the employment; (5) that it is incidental to the character of the business and not independent of
the relation of employer and employee; and (6) that it appears to
have had its origin in a risk connected with the employment and to
have flowed from that source as a natural consequence, though it
need not have been foreseen or expected before its contraction:
Provided, That compensation shall not be payable for an
occupational disease or death resulting from the disease unless the
employee has been exposed to the hazards of the disease in the
State of West Virginia over a continuous period that is determined
to be sufficient, by rule of the board of managers, for the disease
to have occurred in the course of and resulting from the employee's
employment. An application for benefits on account of an
occupational disease shall set forth the name of the employer or
employers and the time worked for each. The commission may
allocate to and divide any charges resulting from such claim among
the employers by whom the claimant was employed. The allocation
shall be based upon the time and degree of exposure with each
employer.

(g) No award shall be made under the provisions of this
chapter for any occupational disease contracted prior to the first
day of July, one thousand nine hundred forty-nine. An employee
shall be considered to have contracted an occupational disease
within the meaning of this subsection if the disease or condition
has developed to such an extent that it can be diagnosed as an
occupational disease.

(h) (1) For purposes of this chapter, a rebuttable presumption
that a professional firefighter who has developed a cardiovascular
or pulmonary disease or sustained a cardiovascular injury has
received an injury or contracted a disease arising out of and in
the course of his or her employment exists if: (i) The person has
been actively employed by a fire department as a professional
firefighter for a minimum of two years prior to the cardiovascular
injury or onset of a cardiovascular or pulmonary disease or death;
and (ii) the injury or onset of the disease or death occurred
within six months of having participated in firefighting or a
training or drill exercise which actually involved firefighting.
When the above conditions are met, it shall be presumed that
sufficient notice of the injury, disease or death has been given
and that the injury, disease or death was not self inflicted.

(2) The Insurance Commissioner shall study the effects of the
rebuttable presumptions created in this subsection on the premiums
charged for workers' compensation for professional municipal
firefighters; the probable effects of extending these presumptions
to volunteer firefighters; and the overall impact of the risk
management programs, wage replacement, premium calculation, the
number of hours worked per volunteer, treatment of nonactive or
"social" members of a volunteer crew and the feasibility of
combining various volunteer departments under a single policy on
the availability and cost of providing workers' compensation
coverage to volunteer firefighters. The Insurance Commissioner shall file the report with the Joint Committee on Government and
Finance no later than the first day of December, two thousand
eight.

(i) Claims for occupational disease as defined in subsection
(f) of this section, except occupational pneumoconiosis for all
workers and pulmonary disease and cardiovascular injury and disease
for professional firefighters, shall be processed in like manner as
claims for all other personal injuries.

(j) On or before the first day of January, two thousand four,
the Workers' Compensation Commission shall adopt standards for the
evaluation of claimants and the determination of a claimant's
degree of whole-body medical impairment in claims of carpal tunnel
syndrome.

Note: WV Code updated with legislation passed through the 2015 Regular Session
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